Ne bis in idem and conflicts of jurisdiction in the european area of liberty, security and justice

Author:Clara Tracogna
Position:PhD in Criminal Procedure (University of Padova), Assistent Lecturer (University of Udine), Attorney-at-Law
Pages:55-71
Clara Tracogna
55
LESIJ NR. XVIII, VOL. 2/2011
NE BIS IN IDEM AND CONFLICTS OF JURISDICTION IN THE
EUROPEAN AREA OF LIBERTY, SECURITY AND JUSTICE
Clara TRACOGNA*
Abstract
The paper offers a survey on European Court of Justice preliminary ruling decisions on art.
54 of the Convention Implementing the Schengen Agreement, which introduces the non bis in idem
principle in the European Union area. After discussing which is the rationale of the non bis in
idem principle, the study will focus on the meaning of idem factum and final decision, in order to
understand which national decisions forbid a second trial in another Member State on the same
fact towards the same person. The essay will then present the 2005 Commission Green Paper on
ne bis in idem and conflicts of jurisdiction and the 2009/948/JHA Framework Decision on the
prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings, that
Member States are expected to implement before 15th June 2012.
Keywords: ne bis in idem prin ciple; idem factum; final decision; conflicts of jurisdiction;
allocating cases to a specific Member State.
Introduction
Ne bis in idem principle and rules on conflicts of jurisdiction express a single aim: as a
matter of fact, prevent the risk of two ore more parallel proceedings on the same fact towards the
same person displays a way to protect person’s freedom.
In other words, limit multiple prosecutions and prevent repetition of a trial arrived at its final
decision responds to legal order consistency requirements as well as to persons’ liberty rights.
The need to protect liberty rights and their stability has been expressed long time ago in rules
allocating jurisdiction among judicial bodies and solving both positive and negative conflicts of
jurisdiction. However, while ne bis in idem is a well known principle both in civil and in common
law Countries, for long time European Institutions didn’t pay much attention to the transnational
application of ne bis in idem nor to the arrangement of shared rules on mutual recognition of
foreign decisions and on the allocation of jurisdiction among Member States.
Ne bis in idem principle, together with rules preventing conflicts of jurisdiction, have to
comply with the mandatory prosecution principle, which is an expression of the Sovereignty that
States hardly give up.
Free movement rights together with disappearance of borders in the European Area have a
direct impact in the implementation of the activity of international criminal organizations. Several
States in which crimes, or part of them, are committed are potentially interested in prosecuting
criminal acts that affect their national security: however, multiple prosecutions and multiple trials
exhaust Member States’ resources and hamper victims’ and defendants’ rights as well as
eyewitnesses’ participation to the related trial.
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* PhD in Criminal Procedure (University of Padova), Assistent Lecturer (University of Udine), Attorney-at-
Law. (Email address: clara.tracogna@unipd.it; clara.tracogna@tin.it.)
56 Lex ET Scientia. Juridical Series
LESIJ NR. XVIII, VOL. 2/2011
Prohibition of a second judgment on the same fact towards the same person appeared first in
the 1987 Convention between European Community Member States on double jeopardy: those
provisions entered then in Title III, Chapter III of the European Convention on the Implementation
of the Schengen Agreement (CISA), which is entirely dedicated to the application of ne bis in idem
principle. The introduction of these rules in a Convention whose first aim was to pull down
borders shows the tight link between ne bis in idem and freedom of movement within the
European area. As a matter of fact, the European Court of Justice, in its preliminary ruling
decisions, ruled that art. 54 of the European Convention on the Application of the Schengen
Agreement, providing the European ne bis in idem principle, introduces a corollary to the freedom
of movement in a “negative” meaning: the right to move from one State to another shouldn’t have
negative consequences, i.e. multiple prosecutions towards the same person for the same act.
According to art. 82, § 1, lett. b of the Treaty on the functioning of the European Union, the
Union is competent in preventing and solving conflicts of jurisdiction among Member States.
However, few and no widely applied rules excepted, rules on prevention and resolution of conflicts
of jurisdiction were lacking: a first step was taken with the 2005 «Green Paper on Conflicts of
jurisdiction and the Principle of ne bis in idem in Criminal Proceedings» published by the
European Commission. Due to the Green Paper, art. 54 CISA is not a sufficient warrant: for
example, recognizing a non bis in idem effect to the final decision first ruled in one Member State
leads to the practice “first come, first served”, on which basis the State that first passes a final
decision stops any further proceeding elsewhere, even when a second State appears to be, for
instance, closer to the fact and its evidences. Moreover, a forum shopping technique could be used
by National judicial authorities: for example, when coordinating investigations, the State mieux
placée to prosecute crimes is chosen during coordination meetings in a case by case way, affecting
any previous certainty about the competent judge. Eventually, there are still some exceptions to ne
bis in idem in art. 54 CISA that should be changed or reduced.
The outcome of the consultations opened with the Green Paper is the 2009/948/JHA
«Framework Decision on the prevention and settlement of conflicts of exercise of jurisdiction in
criminal proceedings», that Member States are expected to implement before 15th June 2012. The
Framework Decision introduces a consultation procedure in order to choose, among Member
States equally entitled, which is the best national judicial Authority to prosecute crimes. Indeed,
the wording of art. 54 CISA hasn’t been changed and is therefore still in force. However, the
forthcoming implementation of the Framework Decision raises several problems of consistency
with national principles (i.e. mandatory prosecution principle) and with defense rights, because nor
the defendant nor his lawyer are involved in the procedure at the end of which the jurisdiction is
allocated.
1. Rationale of ne bis in idem principle at national, international and European level -
The bis de eadem re ne sit actio rule comes from Roman Law and passed into present national
systems: prohibition of multiple prosecutions on the same fact towards the same person is often
codified in legislation and acknowledged as a general principle of law at Courts1.
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1 In Roman law, see M.T. CICERO, Laelius, de amicitia, Chapter 22, § 5: «praeposteris enim utimur consiliis et
acta agimus, quod vetamur vetere proverbio», that recalls the Latin saying «acta agere»; M.F. QUINTILIANUS,
Institutio oratoria, Liber VII, Chapter 6, § 4: «Solet et illud quaeri, quo referatur quod scriptum est: “bis de eadem
re ne sit actio”: id est, hoc “bis” ad actorem an actionem. Haec ex iure obscure»; E.D. ULPIANUS, Digestum, Liber
48, Titulum 2, (de accusationibus), Lex 7, § 2: «Iisdem criminibus quibus quis liberatus est, non debet praeses pati
eundem accusari»; Emperors Diocletianus and Massimilianus’ Constitution to the Codex Iustinianus, Liber 9,
Titulum 2, lex 9: «Qui de crimine publico in accusationem deductus est, ab alio super eodem crimine deferri non
potest». For a historical view of the ne bis in idem rule, see V. ANDRIOLI, Il principio del ne bis in idem e la dottrina

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